A state appellate court has rejected the demand for a new trial from a former Phoenixville Area High School senior who was found guilty of second-degree murder for the shooting death of a fast-food worker returning home from his late night shift.

Monique Robinson, now 20 and serving a mandatory life sentence without parole in state prison, had asked the Pennsylvania Superior Court to overturn her conviction based on what she claimed was an improper statement by the prosecuting attorney during his closing argument. The prosecutor, Deputy District Attorney Peter Hobart, mentioned to the panel hearing Robinson’s case that during his opening statement, Robinson had begun to cry.

“Did she shed a tear during this case?” Hobart asked. “Yes she did. But we sat here as she sat here and heard three times from this witness stand the detailed accounts of (victim) Selvin Lopez being shot and left to die in the street.

“Ladies and gentlemen, I don’t know if you noticed, but her eyes were dry as the desert,” Hobart noted.

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Robinson, in her appeal, contended that the statement was a violation of her right not to testify in her own defense, and amounted to prosecutorial misconduct for which she should be given a new trial.

But Senior Judge William H. Platt, writing for a three-judge panel, disagreed, saying that not only was the remark a largely innocuous comment directed at Robinson’s demeanor on court and not on her decision not to take the witness stand, but that her trial attorney – although he raised an objection at the time — did not ask for a mistrial based on the bias the comment may have shown about Robinson’s refusal to testify.

“We see noting in the prosecutor’s statement that commented on (Robinson’s) silence at trial,” Platt wrote in a nine-page opinion that was delivered Thursday. “Rather, the prosecutor commented on her demeanor at trial.”

He agreed with President Judge James P. MacElree II, who presided over Robinson’s four-day-long April trial, that the comment concerning her tears “could not, and did not, prejudice the jury towards (Robinson) and form in the juror’s minds such a fixed bias and hostility that the jury was unable to weigh the evidence objectively and render a fair verdict.”

According to the evidence presented at her trial, Robinson was an 18-year-old Phoenixville high school senior when she and two men, Saleem Williams and Stephan Reidler, went out on a “mission” to rob someone on the night of Sept. 14, 2011.

Around 1 a.m., the trio encountered Lopez, a 23-year-old Guatemalan immigrant who had just come home from his late shift at the Wendy’s Restaurant in Royersford and who was standing outside his home on Prospect Street in the borough, talking with his uncle. The three, with Williams pointing a .22-caliber semiautomatic handgun that Robinson allegedly gave him, tried to grab a backpack that Lopez was carrying.

When he struggled, Williams fired a shot that struck Lopez in the chest and Lopez collapsed on the street. Robinson grabbed his backpack and the three fled back to an apartment where Williams’ girlfriend was living. There, they divided up the $300 in cash that was in the backpack, and ate the fast food dinner Lopez had been saving.

Lopez was pronounced dead at the scene.

Williams and Reidler were arrested a few days later and charged after police interviewed witnesses who identified them as the culprits. Robinson, who lived with her family in the borough, fled and was a fugitive for several months before turning herself in December 2011.

Williams and Reidler both entered pleas to third-degree murder and were sentenced to 40-to-80 years and 20-to-40 years in state prison, respectively. Both men testified for the prosecution about Robinson’s role in the robbery and shooting.

Robinson, who was represented by West Chester defense attorney Robert J. Donatoni at trial, elected to reject a plea offer of 30-to-60 years that the prosecutor made and proceed with the trial. In his opinion, Platt noted that the decision came against Donatoni’s advice.

The appeal, filed by attorney Jules Epstein, a professor at Widener School of Law, argued that not only was Hobart’s comment about her lack of tears a violation of her right not to testify, but that she deserved a new trial as well because MacElree had cut short Donatoni’s attempt to rehabilitate a defense witness called to contradict Williams’ testimony.

Platt said that MacElree’s decision was proper because Donatoni had not asked a proper question in attempting to counter Hobart’s cross-examination, in which he suggested the witness was tempering her testimony because she wanted to help Robinson.

In the prosecution’s brief opposing the request for a new trial, Assistant District Attorney Gerald Morano maintained that Hobart’s comment was proper.

“The prosecutor did not argue the defendant’s failure to cry or show remorse was substantive proof of her guilt,” Morano wrote in his brief to the court. “Instead, the prosecutor argued that the defendant attempted to manipulate the jury with her emotional state.”